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Kumkum Sen: Verma committee on the sexual harassment Bill

The panel's report is candid in identifying that the state has abysmally failed to promote gender equality and eradicate gender bias

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The New Year’s most important contribution is the release of the in a record time frame of 29 days. The recommendations of the Committee are not restricted to rape laws. Instead, a more holistic approach has been taken, focusing on the fundamental rights of women to live with human dignity under the . The report is candid in identifying that the State has abysmally failed to promote gender equality and eradicate gender bias. Empowerment of women is envisaged in under Articles 14 and 21 of the Constitution, which can be achieved by elimination of inequalities. The workplace is possibly the most representative testing ground for discrimination issues. While, as per laws and policies, women are entitled to complete freedom of choice, and the same rights and benefits in the workplace, including that of a harmonious, protected environment, the issue of discrimination, wage related and otherwise, persists.

The Committee has scrutinised the , which was passed by the in 2011, in great detail. The finding of the Committee is that notwithstanding the Supreme Court directions in the Vishaka case, there is no empirical evidence to suggest that conditions of working women have improved in the recent past. Therefore, the Bill and certain provisions thereof require to be revisited.

It is entirely correct that sexual harassment of women in the workplace is far more prevalent than most of us admit or realise. There are essentially two types of harassment, the classic case being harassment by a superior officer of his subordinate. Figuring out the reason for this is not rocket science. Power is central to this nature of harassment, as the superior officer would necessarily be more empowered than the victim, and usually plays a key role in her progress such as evaluating performances and recommending promotions. It is difficult to have such harassment complained against in the first place — let alone be addressed by an internal committee. To that extent, the Committee’s recommendation that the internal committees should be scrapped is warranted.

The other kind of harassment is one of work atmosphere. This usually occurs when there is a palpable dominance of male employees in the workplace, who lack sensitisation and have a mindset that a working woman expects and deserves such demeaning treatment. This can start with wolf whistles, close encounters in cramped spaces, sexist conversation, reference to senior women workers as “bitches” and other physical and verbal conduct. However a sole incident of inappropriate behaviour, or a request for a date, even if offensive, may not be sexual harassment. That could be a matter of perception on both sides — and this is a situation where perhaps conciliation can work.

However, the Committee in chapter 4 of its report in dealing with the various mechanisms the Bill proposes has categorically expressed displeasure with the conciliation mechanism in Section 10(1) thereof as it is anti ethical and amounts to “muscling” the victim into a settlement in disregard of her dignity, and recommended that the provision be deleted. With due respect, I do not entirely subscribe to this view. Perhaps conciliation should not be the first option, but it should be an available tool. It is possible that the creditability of two valuable employees is involved — conciliation can help in the accused and the accuser explains their respective positions. Many jurisdictions have tried this model successfully, but trained conciliators are required, with legal and counseling training. Possibly in the Indian context, perhaps conciliation can come across as humiliating, given that Indian courts have been directing rape victims to marry the rapist. On the other hand, to clarify the interpretation of the language “unwelcome advances” the Committee has suggested an amendment that due weight be given to the victim’s subjective perception. But if the Committee’s view is that all internal redressal mechanisms should be scrapped, this will be a non-issue.

The Committee however has also recommended the scrapping of the internal committee provided for under Section 14 of the Bill as this dissuades women from complaining. There is a perception that the internal complaint committees may not be effective, given that most instances of harassment either arise from active participation, or conscious acquiescence of the senior management. Also, vesting internal committees with the powers of summoning, discovery and production of documents has been criticised by the Committee on the ground that members of the committee would not have adequate legal training and may misuse the process.

The Bill, currently requires that not less than two representatives from the employees as members of the internal committee, having experience in social work or legal knowledge. Possibly most organisations would depute the HR Head and the Law officer — who may not have the requisite background or skills, notwithstanding their professional capabilities.

While the internal committees may be on the way out and the tribunals are the only recourse, to that extent Vishaka has been diluted by the Committee’s recommendation, employers will nonetheless be required to develop appropriate sanctions internally. Tribunals cannot be an alternative or replace an in-house mechanism. It is critical for the organisations to develop such institutions in-house, train their personnel appropriately, seek intervention of outside agencies, in specific cases, may be from a panel maintained with the local committee or the appropriate ministry. Globally, this approach is followed fairly effectively, and it is desirable for organisations to have such committees — it improves their in-house governance. If the offence is grave, only then the Bill should provide for escalation to the courts or tribunals.

The “red rag” provision of sexual harassment provided in Section 14 of the Bill, which seeks to penalise a woman for lodging a false complaint, has been described as an abusive provision by the Committee; therefore the recommendation is that the provision be dropped. Again, this phenomenon is not uncommon, but it may not have to be specifically addressed in the Bill at this stage — if either party is proven to be taking a false position, he or she should suffer the repercussions.

However on a different note — the Committee has given the employer a breather. The Committee is of the view that it would be inequitable to visit employer with liability in all cases of sexual harassment. Therefore, the liability is limited where the employer has by an act or omission facilitated a specific act and/or permitted the creation of an unhealthy environment at the workplace where such acts of harassment have become rampant. This is again contrary to global practices, wherein the liability always is that of the organisation and the perpetrator, and the costs work out to be the most effective deterrent.


Kumkum Sen is a partner at Bharucha & Partners Delhi Office and can be reached at kumkum.sen@bharucha.in  

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